DOMINGUE v. STATE, DEPT. OF PUBLIC SAFETY

DOUCET, Judge.

The plaintiff-appellant seeks damages for injuries received when a tire he was changing exploded.

The trial judge made the following factual findings, which are not disputed by the appellant:

[After his injury the plaintiff rather easily ascertained the size of the exploded tire by looking at the outer side of the tire, which had been uppermost during the effort to change and inflate the tire.]

The court found no negligence on the part of Officer Breaux, but found that the State was negligent in furnishing an improper size tire. However, the trial court found that ultimately the plaintiff caused his own injury through his failure to determine the size of the tire by removing the safety cone nut and by holding his arm over the tire to plug the stem. Accordingly, the court attributed 100% of the fault to the plaintiff. In a cause of action based on negligence, the plaintiff must establish fault on the part of the defendant by showing that there is a duty owed by the defendant to the plaintiff, that there was a breach of the duty, and that the breach of duty is a cause-in-fact of damages suffered by the plaintiff. King v. Commercial Union Ins. Co., 425 So.2d 358 (La.App. 3rd Cir.1982) writ denied, 429 So.2d 146 (La.1983).

The State, in functioning as a supplier of tires to its State Troopers, took upon itself a duty to accurately fill the requests for tires made by those officers. That duty must encompass the possibility of accidents caused by an incorrect size of tire being supplied.

A breach of duty will be a cause-in-fact of the harm if it is a substantial factor in bringing about the harm. It need not however, be the sole cause contributing to it. Kalmn, Inc., v. Empiregas Corp., 406 So.2d 276 (La.App. 3rd Cir.1981); Bodoin v. Daigle, 452 So.2d 828 (La.App. 3rd Cir. 1984) writ denied 458 So.2d 485 (La.1984); Dixie Drive It Yourself System New Orleans Co., Inc. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962).

Here the trial judge seems to have found the plaintiff's fault to have been an intervening cause of the injury. An initial tortfeaser will not be relieved of the consequences of his negligence unless the intervening cause superceded the original negligence and alone produced the injury. If the original tortfeaser could or should reasonably foresee the accident that might occur, he would be liable notwithstanding the intervening cause. Waggenspack v. New Orleans Public Service, Inc., 297 So.2d 733 (La.App. 4th Cir.1974) writ denied, 302 So.2d 15 (La.1974). We believe that the accident which occurred here was a reasonably foreseeable result of the State of Louisiana's action in supplying the wrong size tire. While the plaintiff was contributorily negligent in that his conduct did fall below the standard to which a reasonable person would conform for his own protection, under similar circumstances it cannot be said that this negligence was the sole cause of the injury. Cambridge Mutual Fire Insurance Co. v. State Farm Fire & Casualty Co., 405 So.2d 587 (La.App. 3rd Cir.1981). The plaintiff's negligence would not have resulted in the injury but for the fact that the State supplied the wrong size tire. As a result, we find that the breach of duty on the part of the State was a substantial factor in bringing about the harm and as such was a cause in fact of the injury. Consequently, we find that the judge erred in allocating 100% of the fault to the plaintiff. Applying a comparative fault standard, we believe a proper allocation of fault is 20% to the defendant, the State of Louisiana, and 80% to the plaintiff. The plaintiff further asserts that the trial judge erred in excluding from evidence certain documents and testimony which, he asserts, would prove a loss of income resulting from the injury. A review of the record reveals that the documents supporting the lost income testimony were repeatedly requested by the defendant through discovery motions. These requests were never complied with, and the defendants were denied an opportunity to prepare a defense. As a result, the trial court correctly excluded this evidence.

We find the plaintiff to have been damaged in the following amounts:

$100,000 in general damages
   8,117 in medical expenses
________
$108,117 Total Award

We affirm the trial court's finding of no negligence on the part of Officer Breaux. There is sufficient evidence to support a finding that Officer Breaux correctly supplied the tire sizes to the requisitioning authority. Having no knowledge of tires, he had a right to rely on his employer, the State, to accurately fill his request, in fulfillment of the duty discussed above. As a result, there was no breach of a duty owed by Officer Breaux to the plaintiff.

For the above and foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part and recast to read as follows: Judgment is rendered in favor of the plaintiff in the amount of $108,117.00 however, this amount is reduced by 80% to reflect the contributory negligence of the plaintiff. Costs of this appeal are assessed against the defendant.

AFFIRMED IN PART, REVERSED IN PART, AND RECAST.